R. v. Tomlinson (B.), (2014) 317 O.A.C. 1 (CA)

• Judge: Laskin, MacPherson and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 28, 2014
• Jurisdiction: Ontario
• Citations: (2014), 317 O.A.C. 1 (CA);2014 ONCA 158

R. v. Tomlinson (B.) (2014), 317 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MR.024

Her Majesty the Queen (respondent) v. Bryan Tomlinson and Roberto Ceballo (appellants)

(C50615; C50948; 2014 ONCA 158)

Indexed As: R. v. Tomlinson (B.) et al.

Ontario Court of Appeal

Laskin, MacPherson and Watt, JJ.A.

February 28, 2014.

Summary:

The two accused appealed their convictions for first degree murder.

The Ontario Court of Appeal dismissed the appeals.

Criminal Law - Topic 136

General principles - Rights of accused - Right to silence - [See third Criminal Law - Topic 207 ].

Criminal Law - Topic 207

General principles - Common law defences - Alibi - The Ontario Court of Appeal reviewed the principles governing the defence of alibi - See paragraphs 48 to 53.

Criminal Law - Topic 207

General principles - Common law defences - Alibi - The accused appealed his first degree murder convictions on the basis, inter alia, that the evidence warranted a traditional alibi instruction - The Ontario Court of Appeal stated that, reduced to its essence, the accused's contention was that the evidence was that he was away from his home for one hour and not at 180 Niagara where the killings occurred and to leave the issue as one of inadequate opportunity mischaracterized the fundamental nature of the defence in a way that prejudiced the accused - The court rejected this ground of appeal for three reasons: (1) the evidence relied upon in support of the defence lacked the precision required of an alibi; it was, as the trial judge aptly characterized it, more like evidence of a limited opportunity to commit the offence; (2) the time estimates provided were not dispositive of the issue of guilt or innocence as a true alibi required; and (3) the trial judge's instruction regarding the evidence of two particular witnesses was the functional equivalent of the recommended traditional alibi instruction - The jurors were instructed: (i) if they believed the evidence, they must acquit; (ii) if they did not believe the evidence but it raised a reasonable doubt, they must acquit; and (iii) even if the evidence did not raise a reasonable doubt, they could only convict the accused if the rest of the evidence that they did accept proved his guilt beyond a reasonable doubt - Further, the accused did not testify and his own evidence could have provided a more precise account of his whereabouts at the material time, as well as some explanation as to how the cell phone evidence tended to link him to the vicinity of 180 Niagara around the time of the murders - See paragraphs 38 to 58.

Criminal Law - Topic 207

General principles - Common law defences - Alibi - The Ontario Court of Appeal reviewed a number of principles governing the disclosure of an alibi defence - The court stated that "First, proper disclosure of an alibi has two components. The first is adequacy, which relates to the sufficiency of details provided. The second is timeliness. Disclosure should be sufficiently particular to enable the authorities to meaningfully investigate. Disclosure in a timely way allows the authorities sufficient time to investigate ... Second, failure to provide timely and sufficient notice of alibi does not vitiate the defence. The trier of fact may draw an adverse inference when weighing an alibi that has not been disclosed in a sufficient and timely way. In a jury trial, the presiding judge should instruct the jury that failure to make timely and sufficient disclosure of the alibi is a factor the jury may consider in assessing the weight to be assigned to the alibi ... Third, the adverse inference instruction is limited to the defence of alibi. Adverse inference instructions on other issues may compromise an accused's pre-trial right to silence ..." - See paragraphs 121 to 123.

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - Tomlinson and Ceballo were both convicted of two counts of first degree murder - The victims were a drug dealer (Hodges) and a purchaser (Muirhead) - Hodges sold drugs out of his apartment - On appeal, Ceballo submitted that the trial judge erred in leaving murder and first degree murder to the jury in connection with him, where he was not alleged to be the shooter - Alternatively, he challenged the adequacy of the instructions on the same issue - Regarding the jury instructions, Ceballo's principal complaint was that the trial judge failed to adequately review the evidence that related to his liability for murder and first degree murder - He argued that the omissions meant that the defence was not put fairly to the jury who were left inadequately equipped to make a just determination of these issues - The Ontario Court of Appeal rejected the submissions - The instructions left the jury with a sufficient understanding of the relevant issues and the evidence that was relevant to their decision on those issues - Further, while not fatal, Ceballo's experienced trial counsel's failure to object was some indication that he did not consider the instruction incomplete, unbalanced or legally incorrect - See paragraphs 168 to 173.

Criminal Law - Topic 1269

Murder - General principles - First degree murder - What constitutes - Tomlinson and Ceballo were both convicted of two counts of first degree murder - The victims, who died of gunshot wounds, were a drug dealer (Hodges) and a purchaser (Muirhead) - Hodges sold drugs out of his apartment - On appeal, Ceballo submitted, inter alia, that the trial judge erred in leaving murder and first degree murder to the jury in connection with him, where he was not alleged to be the shooter - The Ontario Court of Appeal rejected the submission - To warrant jury consideration of Ceballo's liability as an aider in Tomlinson's intentional killing of the deceased, the evidence adduced in the Crown's case, taken as a whole, had to be reasonably capable of supporting the inference that Ceballo did something with the intention of helping Tomlinson whom he knew intended to kill the deceased - The evidence was reasonably capable of supporting the inference that Ceballo, armed with a knife, kept Muirhead confined in Hodge's kitchen - It was open to the jury to conclude that Ceballo knew that Tomlinson was armed with a handgun - The gunman's utterances disclosed a willingness to use the gun and his orders to Ceballo about holding the knife to Muirhead's throat and stabbing him suggested a willingness to kill by any available means - The firing of the first gunshot supported a reasonable inference that Muirhead would be killed next - From this evidence, taken as a whole, the jury could reasonably infer that Ceballo knew the gunman intended to kill the deceased and that Ceballo intended to help him do so by keeping Muirhead confined at knifepoint in the kitchen - See paragraphs 129 to 167.

Criminal Law - Topic 2741

Parties to offences - First degree murder while committing other offence - [See Criminal Law - Topic 1269 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - Tomlinson was charged with two counts of first degree murder that occurred at 180 Niagara Street - One of his defences at trial was that his brother (Cornwall) was the killer, not him - On appeal, he submitted, inter alia, that the trial judge erred in his final instructions to the jury on the third party suspect issue - The trial judge said: "Consider the evidence that you have heard regarding the presence of Mr. Jonathan Cornwall at 180 Niagara Street on January 21, 2005, his whereabouts at the time of the shootings, and his physical description as a factor in deciding whether the Crown has proved the identity of Mr. Tomlinson as the gunman beyond a reasonable doubt. I remind you that your determination regarding someone else as the true perpetrator must be based on evidence properly before you, not speculation, or conjecture." - The Ontario Court of Appeal rejected this ground of appeal - "No prescribed formula exists for such an instruction. What was said here did not shift the onus or dilute the standard of proof imposed upon the Crown. The third party suspect evidence was linked to the adequacy of the Crown's proof of Tomlinson's participation in the killings as the shooter. That is where it belonged. The jury was clearly instructed that a reasonable doubt on this issue meant that Tomlinson should be found not guilty." - See paragraphs 64 and 84.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused was convicted of two counts of first degree murder - At trial, he contended that he was elsewhere at the time of the killings - He also contended that another person had shot the deceased, namely his brother Cornwall, and not him - He appealed, submitting, inter alia, that the trial judge erred in his instructions to the jury on third party suspect defence - The Ontario Court of Appeal rejected the accused's complaint regarding the trial judge's instructions to the jury on third party suspect defence on the basis, inter alia, that (1) it was very doubtful that the evidence adduced at trial met the opportunity threshold, a condition precedent to the advancement of this defence and the admissibility of other evidence; (2) evidence that Cornwall later faced an outstanding charge of robbery, as a matter of logic and common sense, could not support an inference that he had a disposition or propensity for violence almost three years earlier; and (3) the evidence of motive - impecuniosity - was of such a general and amorphous nature as to be almost valueless on the third party suspect issue - See paragraphs 79 to 83.

Criminal Law - Topic 4372

Procedure - Charge or directions - Jury or judge alone - Directions respecting alibi evidence or explanation by accused - [See second Criminal Law - Topic 207 ].

Criminal Law - Topic 4372

Procedure - Charge or directions - Jury or judge alone - Directions respecting alibi evidence or explanation by accused - Ceballo was convicted of two counts of first degree murder - The murders occurred in a drug dealer's apartment between 9 p.m. and 9:15 p.m. on January 21, 2005 - Ceballo testified that he left the building where the murders occurred before 7 p.m. on January 21, 2005 - He said that he been at a different apartment in the same building, but did not return that evening - He testified that he spent the balance of the evening in and around Kensington Market, met some friends there at the Cyber Share Café and visited his friend Jessica's place nearby - He did not know Jessica's last name or her precise address - Jessica did not testify - On appeal, Ceballo submitted, inter alia, that the trial judge erred in finding that Jessica was an alibi witness and in giving an adverse inference instruction based on Ceballo's failure to give notice of his alibi and Jessica's identity, thereby depriving the police of an opportunity to investigate - The Ontario Court of Appeal rejected this ground of appeal - See paragraphs 105 to 128.

Criminal Law - Topic 4388

Procedure - Charge or directions - Jury or judge alone - Directions re addresses by counsel - The Ontario Court of Appeal stated that "... a judge presiding in a criminal trial has not only the right but also the duty to correct the missteps of counsel in their closing addresses ..." - See paragraph 100.

Criminal Law - Topic 4388

Procedure - Charge or directions - Jury or judge alone - Directions re addresses by counsel - The accused appealed his convictions for first degree murder - He submitted, inter alia, that the trial judge erred in instructions he gave to the jury to correct what he considered were improper comments in the accused's trial counsel's closing address - The accused argued that his counsel's submissions, which provided an explanation for his failure to testify, were proper - He further argued that his counsel's "miscarriages of justice" and "wrongful conviction" references were not improper - The Ontario Court of Appeal rejected the accused's submissions on this ground of appeal, holding that the trial judge's corrective instructions did not exceed what the circumstances warranted - See paragraphs 86 to 94 and 101 to 104.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 4410

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - General - The Ontario Court of Appeal referred to some governing principles regarding the closing submissions of counsel - See paragraphs 95 to 100.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another - [See both Criminal Law - Topic 4357 ].

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another - The Ontario Court of Appeal discussed the principles governing the third party suspect defence - See paragraphs 70 to 78.

Cases Noticed:

R. v. Hill (R.) (1995), 83 O.A.C. 99; 102 C.C.C.(3d) 469 (C.A.), refd to. [para. 49].

R. v. Wright (R.) (2009), 254 O.A.C. 55; 98 O.R.(3d) 665; 2009 ONCA 623, refd to. [para. 49].

R. v. Sgambelluri and Sgambelluri Ltd. (1978), 43 C.C.C.(2d) 496 (Ont. C.A.), refd to. [para. 50].

R. v. M.R., [2005] O.A.C. Uned. 144; 195 C.C.C.(3d) 26 (C.A.), refd to. [para. 50].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 51].

R. v. Parrington (1985), 9 O.A.C. 76; 20 C.C.C.(3d) 184 (C.A.), refd to. [para. 53].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 170 C.C.C.(3d) 365 (C.A.), refd to. [para. 53].

R. v. McMillan (1975), 7 O.R.(2d) 750 (C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 71].

R. v. Grandinetti, [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 71].

R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356 (C.A.), leave to appeal refused (1985), 18 C.C.C.(3d) 356n (S.C.C.), refd to. [para. 72].

R. v. Spackman (K.) (2012), 300 O.A.C. 14; 295 C.C.C.(3d) 177; 2012 ONCA 905, refd to. [para. 74].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 76].

R. v. Dorfer (F.S.), [2011] 3 S.C.R. 366; 422 N.R. 245; 313 B.C.A.C. 1; 533 W.A.C. 1; 2011 SCC 50, refd to. [para. 76].

R. v. Titus, [1983] 1 S.C.R. 259; 46 N.R. 477, refd to. [para. 77, footnote 1].

R. v. Khan (A.) (2011), 311 B.C.A.C. 61; 529 W.A.C. 61; 2011 BCCA 382, refd to. [para. 78].

R. v. Smith (I.) (1997), 105 O.A.C. 141; 120 C.C.C.(3d) 500 (C.A.), refd to. [para. 96].

R. v. Prokofiew (E.) (2012), 435 N.R. 1; 296 O.A.C. 1; 2012 SCC 49, refd to. [para. 97].

R. v. Horan (K.) (2008), 240 O.A.C. 313; 237 C.C.C.(3d) 514; 2008 ONCA 589, refd to. [para. 99].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 100].

R. v. Cleghorn (L.), [1995] 3 S.C.R. 175; 186 N.R. 49; 85 O.A.C. 129, refd to. [para. 121].

R. v. Letourneau (D.) and Tremblay (J.L.) (1994), 53 B.C.A.C. 81; 87 W.A.C. 81; 87 C.C.C.(3d) 481 (C.A.), refd to. [para. 121].

R. v. Nelson (M.) (2001), 147 O.A.C. 358 (C.A.), refd to. [para. 121].

Russell v. R. (1936), 67 C.C.C. 28 (S.C.C.), refd to. [para. 122].

R. v. Gottschall (1983), 61 N.S.R.(2d) 86; 133 A.P.R. 86 (C.A.), refd to. [para. 123].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35, appld. [para. 141].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 142].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 143].

R. v. Ferrari (P.) (2012), 295 O.A.C. 9; 287 C.C.C.(3d) 503; 2012 ONCA 399, refd to. [para. 145].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 146].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 146].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 43 O.R.(3d) 378 (C.A.), refd to. [para. 147].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 148].

R. v. P.J.B. (2012), 298 O.A.C. 267; 2012 ONCA 730, refd to. [para. 148].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 148].

R. v. Demeter (1975), 25 C.C.C.(2d) 417 (Ont. C.A.), affd. [1978] 1 S.C.R. 538; 16 N.R. 46, refd to. [para. 148].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, refd to. [para. 151].

R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [para. 151].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 152].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 152].

R. v. Barros (R.), [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 152].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 175].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 175].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 175].

R. v. Russell (D.), [2001] 2 S.C.R. 804; 274 N.R. 247; 150 O.A.C. 99; 2001 SCC 53, refd to. [para. 178].

Counsel:

Brian Snell and Zachary Kerbel, for the appellant, Tomlinson;

Philip Campbell, for the appellant, Ceballo;

Gregory J. Tweney, for the respondent.

These appeals were heard on September 3 and 4, 2013, by Laskin, MacPherson and Watt, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the court on February 28, 2014.